Do you need to make a will (and what happens if you don’t)?

Whether it’s a vast fortune or a handful of knick-knacks, passing on your worldly goods can be fraught. Some families have sticker ceremonies so each person can label what they want. Others fight tooth and nail for their share in court – where what’s fair isn’t always the deciding factor.

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When the time comes and Jane and Andrew Clifford shuffle off this mortal coil, their offspring already know they’ll be in line for an inheritance – but they won’t inherit everything. “I will certainly leave something for our children,” says Jane, who was a school teacher for 20 years in western Sydney but is now better known as a philanthropist. “But I don’t think you do them a great favour leaving large sums of money or property. It can take away their independence, drive and ambition.” Instead, she and Andrew, a well-known fund manager, have already been making plans to give away much of their hard-earned income to worthy causes, not least an ambitious wildlife sanctuary to protect koalas.

Handing down intergenerational wealth, responsibly and effectively, is a challenge facing an increasing number of Australians, and not just the very well-off. Thanks to compulsory superannuation and enormous rises in property prices, many ordinary, hard-working home owners are finding themselves sitting on a substantial nest egg in their twilight years – and facing complex decisions about where it should go when they’ve gone. A study by research house McCrindle estimates Australians born between 1965 and 1979 – Generation X – will inherit some $3.5 trillion from their Baby Boomer parents over the next 20 years.

And you don’t have to be a home owner to have assets and possessions you want to make sure go to the right people. Apart from sprawling share portfolios or cash reserves (if you’re lucky), you might have family treasures, cherished jewellery or knick-knacks with sentimental value. We all have things that are important to us and, hopefully, would be to the people we leave behind, whatever our time of life.

Some, like the Cliffords, are planning well in advance of the inevitable. But many give their own passing little thought until the end is nigh, or not even then, which can be a mistake because the whole business of getting your affairs in order tends to be plagued by misunderstandings. Is it true, for instance, that you can do your will at the post office? Can you leave the lot to the cat shelter? And how do you make your wishes immune from challenges?

Andrew and Jane Clifford: “It’s a lovely legacy.” Credit: Photo: Brad Leue, Australian Wildlife Conservancy

First, what is a will and why would you want one?

In 2548BC an Egyptian chap named Sekhenren set out what is believed to be the oldest surviving last will and testament (from the Latin testari, to testify). Sekhenren’s wishes, penned on papyrus and witnessed by two scribes, were dusted off in 1890 by British Egyptologist William Matthew Flinders Petrie in the remains of a settlement for pyramid-builders south of Cairo. Sekhenren left all of his property to his wife with one condition: she was to refrain from pulling down the houses “which my brother built for me” (his brother, we also learned, was a priest of Osiris, the Egyptian Lord of the Underworld and Judge of the Dead, so Sekhenren was evidently well connected).

Today’s wills are not much different: essentially, a list of instructions left for your next of kin, or those closest to you, ideally written in such a way as to avoid misunderstandings. If you die without a will (or intestate, from the Latin, to have not testified), in Australia the authorities decide what should happen to your estate, according to rules specific to each state and territory. Put simply, your estate is your assets and liabilities, with exceptions such as your super (more on that later). It’s a myth that the government ends up with your money if you don’t leave a will – that happens only if you die without a single living relative – but your unwilled estate may well be disbursed in ways you wouldn’t have anticipated.

The correct way to write a will has been a work in progress for thousands of years. The ancient Greeks required wills to be signed before witnesses and given to trustees to act upon, an antecedent for today’s executors. In 61AD the Romans introduced a form of tamper-proof will, tying together three wax-covered tablets in such a way that the “testamentum” could not be viewed without breaking the outer seals.

Aretha Franklin left behind two quite different wills, one in a locked cabinet and the other discovered in a couch cushion.

The modern form, however, owes much to England’s Wills Act of 1837. It is imperative, for example, that your will is properly signed and witnessed. A court may consider your wishes scrawled in a note (it happens) but a valid will is far more straightforward.

Thanks to their occasionally Byzantine nature – and capacity to surprise – wills have long appeared as convenient plot devices in popular culture. Charles Dickens set his serialised novel Bleak House around the fictional court case of Jarndyce v Jarndyce, a fight over a great inheritance that had persisted for so long and become so complicated that “no man alive knows what it means”. In his novel Crossroads, set in 1970s Bible-belt United States, Jonathan Franzen has a major character defy her father over a $13,000 inheritance from “loony aunt” Shirley. And a hornet’s net was shaken up when Logan Roy, patriarch of the TV show Succession, left a characteristically unhelpful list of wishes in the event of his death, complicated by “undated, doodled addenda”.

Occasionally, real life trumps fiction, such as when the singer Aretha Franklin died in 2018, leaving behind two quite different wills, both handwritten and unwitnessed, one in a locked cabinet and the other in a spiral notebook discovered in a couch cushion. The ensuing dispute among her next of kin wound its way through the legal system for five years until July this year, when a jury decided it was the couch version that should dictate how the $25 million estate should be disbursed, including more than $1 million in cash, several cars, $110,000 in jewellery and $64,000 in furs. The actor Stanley Tucci, meanwhile, insists in his will that he be sent on his way accompanied by a handwritten note he received from the Italian star Marcello Mastroianni inviting him to dinner.

When Aretha Franklin left two wills, a five-year court battle ensued. Credit: Photo: AP. Artwork: Monique Westermann

What makes a will work (and work well)?

To be valid, a will in Australia must be in writing and signed by the will maker in the presence of two witnesses who are over 18 – and who are not beneficiaries. The will maker and witnesses must sign on the bottom of each page and on the last page of the will, preferably with the same pen. No writing or alteration should be made to a will after it is signed. In your will, you must name an executor or executors who will carry out your wishes. It will be for them to swing into action when you die, apply for a grant of probate (where a court approves the will) and make arrangements for your funeral (more on that later). That, at least, is for starters.

DIY will kits are cheap, either from, yes, the post office or online but can be a false economy, say solicitors, if you make a mistake that later renders your will invalid. For this reason, it’s generally considered a good idea to have your will-making supervised, and for another: to ensure you’re aware of your responsibilities to your dependants which, if ignored, can lead to difficulties down the track (see below). More complex matters may also require expert input, such as setting up trust funds for children. Equity Trustees, for example, recommends getting professional estate planning advice if, say, you have a family business, you have children who may require a guardian or your dependants are at risk of bankruptcy or divorce. Family trusts and other mechanisms may come into play (which is a whole other story).

‘The concept of freedom of testation – that a person has a right to leave their assets to whomever they please – remains as the starting point.’

Some online platforms are attempting to bridge the gap between DIY and pricey bespoke legal advice with a service that creates legal wills adapted to the customer. The NSW Trustee and Guardian offers a fixed-price, solicitor-supervised, basic will from $440; a Melbourne business called Willed digitally holds your hand through the process and includes a final check to make sure you’ve done it correctly, for $159. “Going through that experience I saw just how messy death can be,” says co-founder David Kaplan.

Even a carefully drafted and legally valid will (correctly signed and witnessed) is not bulletproof protection against future disputes, but it does make your wishes known, says wills and estate specialist Lachlan McKenzie of the law firm Moores. “A judge is not in a position to throw out the will and start from scratch and impose what they consider should have happened in the circumstances,” he says. “The concept of freedom of testation – that a person has a right to leave their assets to whomever they please – remains as the starting point.”

Once you have your (valid) will, keep it in a safe place (or with your solicitor) and tell your executor/s where to find it. It’s also a good idea to give them a copy, just in case.

Hayley Hunter: What belongs to whom between couples “is one of the reasons why chattel disputes are so common.”Credit: Photo: Penny Stephens. Artwork: Monique Westermann

But what does and doesn’t go into a will?

Your will concerns your estate and not everything you own ends up in your estate, especially if you are married or partnered. It’s typical for a surviving spouse or partner to automatically inherit the other’s share of a jointly owned home or joint bank account through the right of survivorship, which bypasses the estate. But note: there are two ways to jointly own a home. Most couples who buy property together will do so as joint tenants, where the shares are indivisible. If they opt to be tenants in common, though, each owns a share that can form part of their will, an arrangement you might find in second marriages, for example, to protect assets for children from a previous relationship.

House aside, the first partner to die might still leave behind personal items such as jewellery, cash in a bank account held in their own name and individually held shares or other investments – this is the kind of thing that will form their estate.

If you die without a spouse or partner, everything you own (with exceptions such as super) forms your estate and what you do with it in your will is up to you. Critically, super does not automatically form part of your estate and does not necessarily go to beneficiaries according to your will: a common misconception. Your superannuation money is actually held in trust by super funds, whose trustees decide where it should go.

It is essential to download, print out and sign what’s called a binding death nomination form, so the fund knows who to give your super to. (Similarly, depending on whether it is held within a super fund or outside it, and whether you have nominated beneficiaries, life insurance may also not form part of your estate.)

While you’re making your will, it’s a good time to take stock of assets and possessions that might later prove hard to track down – bonds held in obscure trading accounts, ancient life insurance policies, a rare stamp collection, a dour landscape of a canal painting nobody else realises is actually by Rembrandt … you get the idea. Find the title to your house – it’s likely to be the first thing a solicitor will ask to see. Share certificates can be a nightmare to dig out, especially if they were issued directly in an initial public offering and are not registered in a trading account: put them in a clearly marked folder. All of this will be invaluable for your executor, and will alert them about what should definitely not be thrown in a skip.

Where it can get tricky, if you’re married or partnered, is in defining what is yours to bequeath: whose Turkish rug is it? “This is one of the reasons why chattel disputes are so common,” says Hayley Hunter, principal lawyer at Suzanne Lyttleton Lawyers. If you want to be specific about items that you believe to be yours, list them in your will or leave a list referred to in your will. “This won’t defeat arguments, but it might help,” she says.

Organised or pernickety people exhaustively list and pledge every asset and chattel; others divide everything equally among, say, their surviving children or relatives and leave it up to them to decide how to divvy up their effects. Sadly, Hunter notes: “The reality is that people think there’s more value in their personal items than there is and often people don’t care as much as you might hope they do.”

If you want My Way played at your funeral or rose petals strewn on your coffin, this can be set out in your will too, although your instructions are unlikely to be legally binding.

Succession had Logan Roy’s children take turns to place stickers on the art and household items they wanted to keep: an allocation system that also happens in real life. (“When my grandmother died, all her children did the same thing,” wrote a poster on Reddit. “But I believe they used Post-it notes instead of stickers.”) Of course, this assumes fair play: you want to avoid the unedifying spectacle of two adults having a screaming match over a rare walnut coffee table; and interested parties might spirit away coveted items ahead of a democratic sticker ceremony, a phenomenon also observed in Succession.

By the way, if you want My Way played at your funeral or rose petals strewn on your coffin, this can be set out in your will too, although your instructions are unlikely to be legally binding on your executor. However, it’s better to share your wishes while you’re alive. “Make those wishes known during your lifetime,” says McKenzie. “There’s been instances where people have gone through the process – somebody’s died, they’ve gone through the funeral – and then they’ve looked at the will, and they’ve seen directions buried down the bottom of the will.”

When it comes to planning the funeral, meanwhile, don’t feel too constrained by convention, says Sydney celebrant Meggan Brummer. “You don’t have to have it in a chapel,” she says. “You could have it done at the beach. You could have it in your garden or a surf lifesaving club.”

Meggan Brummer: Don’t be constrained by convention when planning your own funeral. Credit: Photo: James Brickwood. Artwork: Monique Westermann

What do executors have to do?

A common myth is that being an executor of a will gives you special powers, or a special claim to an estate. Neither is true. Instead, it can be a lot of work and comes with legal obligations that should not be downplayed, say lawyers. “Heavy lies the head that wears the crown,” says Christian Teese of Rigby Cooke Lawyers. Hunter agrees: “Being an executor is generally a thankless task.”

As well as being responsible for arranging your funeral, it is your executor/s’ job to obtain your death certificate. They must apply for a grant of probate (from the Latin probatum, a thing proved), which is where the Supreme Court in the relevant state confirms the will is valid and gives permission to distribute the estate. Executors are responsible for identifying and keeping safe your assets, settling utilities such as gas and electricity, closing bank accounts, deleting social media accounts and paying any outstanding debts in the correct order of priority.

You can hire an executor but beware: fees can run into the tens of thousands of dollars.

They are also typically responsible for finalising your tax affairs (while there are no death duties in Australia, tax can be applied to capital gains and super, depending on the circumstances of the inheritance). Then they must find the beneficiaries and distribute what remains of the estate, which can prove complicated and even require years-long detective hunts.

Your executors must also take care to not distribute the estate within the window in which a will could be challenged (it differs among states and territories) as they can find themselves liable for any later shortfall if, for example, beneficiaries refuse to pay back their inheritance. “Prudent executors would not distribute during these statutory periods,” says Hunter. You can hire an executor but beware: fees can run into the tens of thousands of dollars.

If this sounds like a lot, at least know that being an executor is not the same as having a power of attorney. This is when you authorise someone to make financial, medical or other decisions for you when you no longer have the legal capacity to make these calls.

In TV show Succession, the children of the late Logan Roy pause to watch him on a video while holding rolls of stickers, each with their own colour, to divvy up his household items.

Can I just leave everything to the cat shelter then? Is there anyone I’m obliged to provide for?

Yes – and no. Or, it depends on whether you have dependants.

If you are going to leave somebody out of your will, explaining why in the will itself can backfire, says McKenzie, as it’s then on the record in a public document. Instead, it can be a good idea to lay out your reasons in an affidavit as a separate document, says Hunter. “If you’re going to cut someone out of your will because, for example, there’s an estrangement, then leaving some evidence about why you’ve done that is really important,” she says. “It will at least be compelling evidence of your own mindset and why you’ve done it.”

And welcome to one of the least understood and most contentious areas of Australian law, up there with divorce rulings. For while our courts put great stock in testamentary wishes (good for cat shelters), there are circumstances when they can interfere, including when an aggrieved person leverages “family provision” laws, which provide remedies for dependants of a deceased person who haven’t been adequately provided for in the will.

‘The ones we see contested the most are where there is a second spouse who’s up against the kids from the first relationship.’

The states differ slightly on whom they define as an eligible person (and on the limitation periods) but generally it includes spouses, children and, in certain cases, other dependants, stepchildren and former spouses. Alison Butler, a solicitor who specialises in estate disputes says: “You are responsible to consider their needs when you make your will if you can afford to provide for them, and they can demonstrate a need for provision.” Nor, critically, is it about what’s fair or achieving equality among siblings – the cause of many a bitter dispute.

Not uncommonly, challenges to wills arise from blended families, where provision hasn’t been made for stepchildren or children from a previous relationship. “The ones we see contested the most are where there is a second spouse who’s up against the kids from the first relationship,” says Hunter. “There’s usually a division of the estate between them all. A creative solution is what’s commonly known as a Crisp order, which can afford a spouse (for example) a flexible life interest over a property (usually the marital home) to allow them to sell it to fund future accommodation including retirement villages or residential aged care with the estate reverting to children after the death of that spouse.”

What can seem counter-intuitive, though, is what a court might consider as “need”. Butler explains it like this: “The court will say OK, well, in our society, there’s an expectation that a parent will help a child out along the way, but there’s not an expectation that a parent will provide for them entirely. My parents might give me the money for a deposit on a house, but I don’t expect them to buy a house for me. So, the judges’ decisions tend to reflect those societal attitudes.” Consequently, most people can show some need for provision, says Butler. “If you’ve got a mortgage or other liability, can’t afford household maintenance or repairs or your reasonable expenditure exceeds your income then you can likely demonstrate a need for provision.”

‘It is tragic,’ the judge observed, ‘that the parties have been unable to reach agreement when the estate is so small.’

Ultimately, says McKenzie, don’t leave any of this until the last minute. “Frankly, the more discussions that are had during somebody’s lifetime about what one intends to do and how it’s going to be structured, so it doesn’t catch anybody by surprise, after death, is the best way to approach it.”

Unfortunately, if a court needs to get involved, the results are usually painful. Costs, for one, can swallow much of a smaller estate. “I’m still angry about it all these years later,” says Deirdre Lampard, a defendant in a successful challenge to her mother’s will by her brother in 2006. Confined to a wheelchair and living in the family home, he argued his mother had taken care of him for the preceding years. His siblings argued “that he has drunk and smoked his pension away while being supported by their mother”, according to the eventual judgment in the Victorian Supreme Court.

But he was found to have a strong case and was awarded $100,000 in addition to his costs, which reduced the three sisters’ individual inheritances to a pittance. “It is tragic,” the judge observed, “that the parties have been unable to reach agreement when the estate is so small.” Still, Lampard has no regrets. “You know, we were never going to roll over and just hand it to him on a platter.”

Needs, of course, are relative, as the Olivia Mead case explored. In 2015, Mead, then 19, went to WA’s Supreme Court to argue for a bigger share of the estate left by her father, WA mining heir Michael Wright. She’d been left $3 million in trust; his two older daughters got about $400 million each and his son $20 million. In her provision claim, Mead’s calculated needs ranged from $800 a week for food and alcohol to the upkeep of a Mexican walking fish and Pilates lessons until she was 97 to a $250,000 diamond-encrusted bass guitar.

While Master Craig Sanderson found some of her wishes “clearly fanciful”, he found in her favour and increased her inheritance to $25 million in a one-off payment. Yet it didn’t end there: the ruling was overturned in WA’s Court of Appeal in 2017 with the inheritance reduced to $6.1 million. This was enough, according to that subsequent judgment, to buy a $1.5 million home in Perth and to provide Mead with $100,000 a year – “an income stream for the remainder of her life that is adequate and proper for her”. Her application for special leave to appeal to the High Court was denied in 2018.

Alison Butler: You are responsible for considering dependants’ needs “if you can afford to provide for them, and they can demonstrate a need for provision.”Credit: Photo: Rhett Wyman. Artwork: Monique Westermann

Can I at least put conditions on an inheritance?

You can try. Aretha Franklin stipulated in her first will (which was dismissed) that two of her sons “must take business classes and get a certificate or a degree” to collect from the estate. On the receiving end, Mead not only challenged her $3 million inheritance but the unusual rules it imposed on her. She wouldn’t see a cent if she broke any of its stringent rules, just some of which had included: if she became an alcoholic; had a drug conviction; or had involvement with any religious body “other than the Roman Catholic, Anglican, Presbyterian, Baptist, Uniting or other similar traditional faiths”.

The judge found these conditions “egregious”, particularly the last. “Most Australians would regard freedom of religion as part of their birthright. The plaintiff, in order to be sure the trust would vest in her when she turned 30, would have to give up that basic human right. That is an extraordinary proposition.” Says McKenzie: “You often see instances where people are trying to rule from the grave and place restrictions on what a particular gift can be used for. And what you might find is that at their death it’s no longer appropriate for the person receiving the gift, or it’s just not practical, it can’t be carried out.”

That said, it may be reasonable to leave money in trust for, say, education for a young adult; and you can stipulate that someone is to receive the inheritance only upon reaching a specified age.

Sally Chapman: “A bequest is a really good safeguard for the environment.”Credit: Photo: Wayne Taylor. Artwork: Monique Westermann

Are you better off giving away your stuff while you can?

Possibly. What you do with your money when you’re alive is your business … with a minor exception in NSW, where assets hastily removed from an estate prior to death can be reclaimed in a will challenge, through what’s called notional estate. Generally, though, some Australians sitting on significant assets are finding satisfaction in making gifts while they are still alive. “Giving during your lifetime allows you to support projects you care about passionately and develop relationships with the people you’re supporting,” says Philip Wollen, a banker turned environmentalist and supporter of the Sea Shepherd ocean conservation group. “I always joke, my strategy is to give everything away with warm hands and die broke,” he says.

‘If people have really clear values a will is a really powerful way to bed that down.’

The Cliffords support many causes. One of the more ambitious is a piece of land they have bought to be managed by the Australian Wildlife Conservancy: nearly 4000 hectares of native forest three hours north of Sydney. Until recently used for logging, it is now preserved for koalas and other endangered species including the yellow-bellied glider, glossy black cockatoo and tiny green-thighed frog. “We have donated substantial sums,” says Clifford, “but here they can see something tangible, where the money has gone. It’s a lovely legacy for the people of NSW.”

Similarly, Sally Chapman, who lives in Melbourne’s inner north, decided instead of leaving her estate to her niece and nephew, to bequeath her idyllic 24-hectare piece of land in the Victorian High Country to an organisation called Trust for Nature. Originally bought as a weekender, Chapman began to consider it to be a legacy once she learned that the endangered greater glider is found there. “I thought, what is my responsibility to protect the native plants and animals if I think of myself as a custodian of the land as opposed to an owner? A bequest is a really good safeguard for the environment.”

Making her will, she says, was an opportunity not only to get her affairs in order but to consider where she might have an impact beyond her immediate family. “There’s a great conversation around what are the assets that any of us hold right now and how can they be distributed differently,” she says. “If people have really clear values, a will is a really powerful way to bed that down.”

Advice given in this Explainer is general in nature. You should always seek your own professional advice that considers your own circumstances before making any legal or financial decisions.

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